Nick: virtual dispute resolution

Nick Smyth

Trials in Second Life Jan. 8, 2007

Second Life is a viable but limited addition to the dispute resolution tool box. The nature of the technology presents uniquely useful opportunities for judges, lawyers, arbitrators and their parties. This paper has two goals. First, it will explore the opportunities created by virtual dispute resolution (hereafter “VDR”) and the limits (and potential solutions) of such a system. Second, it will provide specific observations based on the two experiments in our course (Trials in Second Life, Fall 2007) and some predictions for the future.

Opportunities

Areas such as small claims courts would appear to be ripe for VDR. Given the currently high cost of litigation limits the chances that most Americans will be willing to go to court for low-value disputes, it is likely that the low cost of an arbitration in Second Life would make it a viable alternative. This could lead to an increase in low cost litigation. This would be both bad and good for society. First, it could prevent violence by channeling disputes towards nonviolent resolution. Second, it could increase violence and / or general distrust by increasing the likelihood that people would be subject to litigation. (Of course, without a legal structure that finds VDR judgments legally enforceable, VDR would have limited use. Any plaintiff who could not persuade his defendant to submit to binding VDR would have to sue in regular (high cost) courts. Thus, under the current system, VDR judgments would only be final and binding if parties to a dispute agreed ex ante to be bound by such a judgment. In the case of small claims disputes, it is doubtful that many pairs of parties would both be willing to be bound.

One of the benefits of VDR in Second Life is that it allows parties to face one another on an even ground, masking age, race, gender, physical beauty and other physical differences which might provide grounds for conscious or subconscious discrimination. While Second Life is designed to allow users (through their avatars) to take on unique and often strange appearances, one can imagine a VDR system that uses avatars who all look the same (or perhaps who look different based on which role they are playing—with parties looking the same). To an extent that is impossible in real life courts, this would remove status biases as a factor of judges’ or juries’ decision-making. However, it would not fully remove such biases, since fact finders would pick up on language and linguistic cues that would give them ideas of the, for example, the age or class of the parties. In order to completely eliminate biases one would want to have the lawyers do all of the talking in the VDR, and somehow ensure that the people who are actually the lawyers are trained to use identical linguistic styles (something that lawyers, despite their penchant for verbosity and run-on sentences—I’m being ironic here—do not do). Moreover, if the VDR used real voices rather than typing in chat, verbal cues would also provide room for discrimination. Thus, Second Life may add more harm than good on the discrimination front, especially if it led to a false sense that discrimination had been forever purged from the criminal justice system.

VDR would be cheaper than any previous method of dispute resolution. One of the most incredible things about the globalization of the world wide web is that it has created opportunities for people in developing countries to offer services for much lower wages than their service worker counterparts in the developed world. I imagine that college-educated Indians could be trained to operate virtual small claims courts (complete with more senior and highly-paid Indians on the appellate level) that would be able to process cases for fractions of the cost of brick and mortar courts in the developed world. If VDR really took off (and perhaps it would turn out that people would turn to it for reasons other than cost—say it could be streamlined using technology and efficient labor management to provide judgments in a fraction of the time of traditional courts), established VDR companies could have appeals courts in the United States, to assure customers that the results would be legitimate. Of course, this would raise the price and time of the average case, but methods could be implemented to make appeals very difficult. (After all, one of the primary draws of ADR is the limited appeal threat.)

Certain negotiations and disputes provide the perfect opportunity for low cost VDR to replace traditional arbitration. For instance, baseball-style arbitration, in which baseball players and their teams both provide a number they think is fair for a new contract and then the arbitrator picks one of the numbers, could easily be done in VDR, without the expense of flying agents in from Los Angeles and renting out fancy hotel suites. While the agents might still remain indispensable (after all, reputation is everything) for a time, gradually India-based agents would likely build up their client base until one day, A-Rod is represented by a guy who takes only 1% of his salary and who also represents sports players in South America, Europe and Japanese stock car racers.

One of the clearest benefits of VDR is the potential to bring unlimited numbers of eyes into the court room. Right now, televised courts are limited to Judge Judy and rare courts that allow live cameras. Televised legislative hearings are limited to C-SPAN, which most people do not watch and some people lack access to, since it is available only on cable. Moreover, the audience members of such public fora cannot speak to one another in the way that they can in a traditional court room. VDR would allow millions of people to sit in the gallery of a famous murder trial, all talking amongst themselves without interrupting the proceedings (using one-way “glass” that only allows sound to pass one way in the virtual court). And in trials that have multitudes of plaintiffs, such as large class action suits, all of the plaintiffs would be able to fit in one room.

Limitations

As for more serious cases, and especially criminal ones, I do not believe that VDR will ever be able to replace the traditional court for several reasons. First, courts of law rely on the principle of habeus corpus, which requires that the defendant be able to face his accusers. This prevents fraudulent prosecution and abuse of the criminal justice system. Moreover, the broader principle of having a jury or judge facing the witnesses and lawyers in person has no doubt been one of the longest-held and common threads of justice systems the world over. One of the reasons issues of fact are not appealable to non-trial courts is that the appellate judges do not have the opportunity to personally determine witnesses’ credibility. Seeing a witness testify in person (or by video, as is allowed in some rare instances) is critical to ensuring that the fact-finder’s perception of the testimony gets allows it to find as closely as possible to the truth. Although testimony by witnesses with their faces hidden has been allowed by some criminal courts with high profile witnesses who could not otherwise safely testify, such identity masking is an absolute last resort.

Forcing witnesses to testify in person also ensures that they focus fully on providing complete and accurate testimony. As is demonstrated daily in every law school, people with computers connected to the internet are easily distracted. In fact, I think this is the strongest argument against VDR—and it is one which cannot be mitigated without losing most of VDR’s cost advantages over traditional courts. One can imagine a system which sends a court officer to the house or office of every witness and juror to make sure that these people are paying attention to nothing but the computerized trial, but that would be ridiculous. One can also imagine a slightly less ridiculous system whereby local VDR centers would be managed like libraries, offering computer terminals to witnesses and parties and with librarian figures constantly on patrol to make sure participants are not goofing off. Systems could also be put in place so that supervisors could randomly monitor the behavior of individual participants—in the model of random DUI checkpoints—to prevent slacking off.

But such monitoring systems smack of un-American violations of due process. Unfortunately, there would be few other options. Relying on an honors system to keep jurors and witnesses properly engaged in potentially lengthy trials would be even more futile than it is in keeping law students paying attention. Jurors and witnesses do not face the prospect of grades (though perhaps one could revoke or reduce their pay if the jurors were paid). It is not hard to imagine that having distracted witnesses and jurors might lead to more hung juries or inaccurate judgments.

There are more basic objections to VDR evidence. Witnesses testifying in VDR would also be able to copy and paste testimony into the program, as we did in Second Life. Although the direct examination of a witness is often more or less scripted, the witness is still theoretically testifying based solely on his or her own memory. VDR gets close to eliminating that element, even if one managed to create a system that does not allow pasting. At an even lower level, what would there be to stop a VDR part or VDR witness from lying about their identity. One can imagine highly paid expert witnesses having their assistants testify in their stead. (Of course, such objections may be frivolous, given that few highly paid witnesses would be found in the cheap VDR world.)

Conclusions from the mock trial and Congressional hearing

Based on the limited efforts our class made at conducting VDR in Second Life, I think it is safe to conclude that the format of Second Life is much more conducive to the needs of a hearing than a trial. In the virtual criminal trial of Paul Addis, the courtroom was disorganized and somewhat hard to navigate. The nature of the rules of evidence and the need for objections and rulings on objections reduced the utility of the virtual space. (Perhaps one advantage of a virtual trial is that if an objection led to a ruling that the juror was to disregard a witness’ testimony or a lawyer’s question, the objectionable content could be removed before the jurors saw it, if one allowed the opposing lawyers to read or hear the testimony and questions a minute in advance of the jury.) One can imagine that the use of microphones and voices instead of typed words would only make things more confusing, since it would be harder to match voices to individuals.

In contrast to the Addis trial, the mock hearing on the Reauthorization of the Higher Education Act that we put on in December seems to play to the strengths of the format. First, due to the highly structured nature of Congressional hearings, it was nearly always clear who was speaking. People took their turns and a lack of objections made things flow smoothly. Moreover, people who had prepared testimony were able to smoothly paste it in, allowing them to “testify” more quickly via computer than if they had read their testimony in person. Although scripted testimony is not allowed in a trial, it is perfectly acceptable (and the norm) in legislative hearings.

The legislative hearing is also a good opportunity for VDR because it often requires only a short speech or question and answer session for witnesses who often fly from across the country and whose services are in high demand. Reducing the time it takes to testify to Congress would make it easier for lawmakers to get the witnesses they want and make it less costly for witnesses to testify. For instance, in our virtual hearing, there were lawyers from all over the country and witnesses from California. These people need not make their trip for a 1 hour hearing that lawmakers might not even attend.

Legislative hearings are heavy on information, much of it independently verifiable facts such as the number of students sued for downloading or the amount a specific college receives in Pell Grants. This lessens the strength of the credibility objection raised above—since witnesses are not testifying about something only they have seen in person, they would have a harder time and less incentive to lie. Still, not all hearings are so information-based. Condoleeza Rice’s confirmation as secretary of state is an example of a hearing that would certainly be most effective in person, since much of her testimony concerned her ability to make sound decisions based on the information at hand. Since there were contradictions between what she said she knew and what it seemed she should have known in the lead up to the war in Iraq, there was much for Senators to infer about her credibility, and her appearance in person helped them do that.

This last point also reminds me about media coverage. Certainly there is another big difference between trials and hearings: the former are nearly always closed to television cameras, while that latter are open (though rarely shown). Thus, the ease of television coverage should be a consideration for any committee chairperson who hopes to conduct a hearing in Second Life. If we had reenacted in Second Life Condoleeza Rice’s hearing using the transcript, we could not have made it as interesting for television news editors and their audiences as it actually was. Fortunately, most legislative hearings stand no chance of getting on the evening news, so ease of news coverage is rarely an issue. Moreover, Second Life hearings could be made to look more interesting than they do now, by using better virtual hearing rooms and avatars who look like specific (celebrity) lawmakers, for example.

The Future

One thing that we can be sure about the future is that it is unpredictable. While certain innovations seem inevitable, others will blow our minds. For instance, it is clear that Second Life will probably one day improve its graphics (and benefit from faster graphics processors) enough to make it look very realistic. Avatars may eventually bear the faces and bodies of their real-life owners, scanned at a Second Life shop, or pulled from a government or credit card database. But other things are harder to predict. For instance, will VDR and real life eventually merge? Will brick and mortar courts one day be populated by virtual lawyers, projected by hologram machines in front of witness boxes full of real people, with virtual clerks projected in from India at a fraction of the cost to the local tax payers? Or will Second Life’s progeny get to be so good and so realistic that all dispute resolution is done through VDR, using virtual reality machines masks and gloves that replace the quaint monitors and keyboards of today’s computers?

I suspect that the actual future will be more similar to and more different from today’s world than we imagine. Like futuristic predictions of the past, I am assuming some things will change much more rapidly than they probably will. For instance, while computers have revolutionized the document production and organizing systems of lawyers and courts, judges and jurors still receive the same finished product (albeit sometimes with thousands more pages of documents than in the past)—a trial—that they did in the 1800s.

I am certain that VDR will play a role in adjudicating certain negotiations and disputes, particularly those that are anticipated, such as labor contracts, insurance claims, and a small percentage of small claims. In addition, it may affect our courts and our legislative system in widespread, unexpected ways, by replacing live witnesses altogether if the technology gets good enough. It may even replace habeus corpus, saving the cost and danger of transporting prisoners (Guantanamo, anyone?) from distant prisons.

Next Year’s Class

I would offer a few final thoughts for next year’s Trials in Second Life class. First, the students and Professor Nesson should make more of an effort to organize the syllabus so they can use the time as efficiently as possible. I felt that the level of preparation that went into the Addis trial was very impressive, and led to more out of class work than any other week of the course. Students met outside class, they did research, and they wrote interesting openings and closings, directs and crosses. This trial should have provided a model for future trials, and we should have done 3 or 4 trials in the semester, instead of only 2 (or 2.5, if you count the divorce case). Unfortunately, while the Congressional hearing format and the RIAA suit seemed to be the unanimous winner in terms of providing an interesting platform for hashing out an issue, the RIAA case did not stimulate as much work outside of class.

The class should be structured so that it requires a certain amount of preparation for the VDRs, and students should be notified of the expectations (including any potential term paper) up front. This would lead to more fruitful explorations into the true potential of VDR.